Force majeure during martial law

1. Force majeure in Ukrainian law is defined in Article 617 of the Civil Code of Ukraine and the Law of Ukraine “On Chambers of Commerce and Industry in Ukraine” as extraordinaryand unavoidable circumstances that objectively make the performance of an obligation impossible.​
   The key features of force majeure are:
   extraordinary nature of the event (it is atypical and cannot be normally foreseen);​
   · inevitability of its consequences, even where the party acts in good faith and with due care;​
   · a direct causal link between the event and the impossibility of performing a specific obligation.​
   At the same time, neither war nor the introduction of martial law, in themselves, automatically release a party from liability: it is necessary to prove that these particular circumstances made it impossible to deliver goods, make payment or perform works under the specific contract.
2. War and martial law as force majeure
   Since 24 February 2022, martial law has been in effect in Ukraine, and the military aggression of the Russian Federation has been recognised by the Ukrainian Chamber of Commerce and Industry as force majeure in a general letter dated 28.02.2022 No. 2024/02.0-7.1.​
   However, this letter does not automatically exempt entrepreneurs from liability: each business entity must prove that it was the war that made performance of its obligation impossible.​
   Thus, for one business, hostilities may constitute an insurmountable obstacle (destruction of a warehouse, blocked logistics, mobilisation of key employees), whereas for another they may only create difficulties (delays in deliveries, communication failures) that do not remove the duty to perform the contract.​
3. CCI Ukraine certificate: purpose and procedure
   The Law of Ukraine “On Chambers of Commerce and Industry” assigns to the CCI the function of certifying force majeure circumstances, and, based on an application from a business entity, the Chamber may issue an individual force majeure certificate.​
   The procedure includes:

• Submitting a written application describing the contract, the obligation that cannot be performed, and the circumstances preventing performance.
• Attaching supporting documents (contracts, correspondence, evidence of property damage, lack of access to the facility, official notices from public authorities, etc.).
• Examination of the application by the CCI commission and issuance of a conclusion (approval or refusal).
  It should be borne in mind that the certificate itself does not release a party from the obligation; it only confirms the existence of force majeure circumstances, while the final legal assessment is given by a court, which analyses the link between the circumstance and the non-performance.​

4. Case law during the war
   Since the start of the full-scale invasion, courts have required parties to specify the impact of the war: martial law alone or the general CCI letter is not enough, and a party must prove the impossibility of performance under a particular contract.​
   Changing the place of delivery or postponing performance does not exempt a party from liability if the obligation could still have been fulfilled in another way, including via alternative payment or delivery methods.​
   Therefore, case law is quite strict: a CCI certificate is only one piece of evidence, and courts assess the justification for invoking force majeure on a case‑by‑case basis.​
5. Contracts in wartime: managing risks
   Contracts increasingly contain special “war”clauses as part of force majeure provisions, expressly stating that war or martial law constitute force majeure, setting out the notification procedure, the consequences (suspension, termination without penalties) and the documents required to prove force majeure (CCI certificate, statements of impossibility of performance, etc.).​
   Practice shows that contracts work best when they provide flexible mechanisms for resuming performance once such circumstances cease, which helps to reduce disputes and legal risks.​
6. Liability and compensation for losses
   Exemption from liability due to force majeure means that a party does not pay penalties or fines for non‑performance, but it does not extinguish the obligation itself, and once the force majeure ends, the obligation must be performed within a reasonable time.​
   At the same time, it is important to distinguish between:

• exemption from liability (Article 617 of the Civil Code of Ukraine);​
• justification of non‑performance in court where evidence exists;​
• termination or amendment of a contract due to a fundamental change of circumstances (Article 652 of the Civil Code of Ukraine).​
  For businesses, this means that even after proving force majeure, they must be prepared to resume performance of the contract as soon as it becomes possible.​

7. International contracts
   In international contracts, Ukrainian companies often face discrepancies between the Ukrainian concept of force majeure and international standards such as the ICC Force Majeure Clause 2020, and foreign counterparties do not always treat a CCI certificate as conclusive evidence.​
   Therefore, Ukrainian exporters should:

• agree on jurisdiction and applicable law in their contracts;
• define the rules for proving force majeure;
• pre‑define the procedure for giving notice of non‑performance.
  This helps to avoid the risk of conflicting interpretations of obligations and court disputes in international arbitration.​

8. Practical tips for businesses
   Promptly document all consequences preventing performance: photos of destruction, evacuation orders, official certificates, etc.​
   · Notify counterparties in writing and without delay once the circumstances arise.​
   · Apply to the CCI only where there is a genuine impossibility of performance, not as a purely preventive measure.​
   · Assess alternative ways of performance (partner warehouses, online payments, changed routes, etc.).​
   · Sign addenda that record suspension or extension of deadlines without penalties.

Conclusion
Force majeure under martial law is not a formality or a universal remedy but a complex legal concept that requires proof of causation, documentary support and reasonable conduct by the affected party; martial law alone does not release parties from their obligations but merely provides a context for more flexible judicial assessment of the situation.​
If you face issues related to force majeure clauses, proof of impossibility of performance or obtaining a CCI certificate, it is advisable to seek professional legal advice.

Author: Oleksandr Nakonechnyi, attorney, head of corporate and commercial law at WINNER Law Firm.